HSLDA
April 27, 2005

HSLDA Defends New York Family Against Intrusive Special Education Evaluation

When Mark and Kathy Durham* decided to homeschool their children, they knew that neither set of grandparents approved. This disapproval came to a head late last year when the grandparents complained to the superintendent of the public schools in their district. The superintendent made a report of alleged educational neglect to the local CPS department, which investigated the charge and determined that it was unfounded.

That should have ended the matter. But it didn't.

Because the grandparents' letter alleged that one of the children had special needs, the school district initiated a due process hearing to compel the parents to submit the boy to public school officials for a special needs evaluation. They claimed that under the child-find provisions of the federal Individuals with Disabilities Education Act (IDEA), parents of privately-educated students who had no desire to have any services from the public school nevertheless were required to submit to a special-needs evaluation anytime the school district had any information suggesting that a child might have special needs.

HSLDA Litigation Counsel James R. Mason, III immediately filed a motion to dismiss. The motion made two basic arguments, one a common-sense argument, and the other a legal argument.

The common-sense argument is that the purpose of the initial evaluation is to determine eligibility for public school special-education services which the parents may reject, and the school district may not compel in any event. In other words, it makes no sense to require parents who already know that they would not accept public school services under any circumstances to have an initial evaluation to determine whether they would be eligible for the services.

The legal argument is based on a fundamental understanding of the U.S. federal system. IDEA is a federal statute passed by Congress under its spending-clause authority. Under the spending clause, Congress may use federal money to induce states to enact certain programs. Congress may not, however, directly regulate private conduct through federal statutes under the spending clause. In IDEA, Congress provides federal money to school districts that agree to certain conditions. The primary condition they must agree to is the provision of a "free appropriate public education" (FAPE) to all students who desire one. That means that any child with special needs who attends a public school must be provided special education services.

Additionally, Congress conditioned the receipt of federal money on public schools' agreement to provide some services to privately-educated students, including homeschoolers. Not all privately-educated students would be eligible for the same services, however, as if they had attended the public school. Some privately-educated students might be eligible for some services.

It is absolutely clear in the federal statute, however, that no parent who chooses private education may be forced to accept public special education under IDEA. The Durhams, like many religious homeschooling families, would never send their child to public school for any services based on their religious convictions.

Oral argument on the motion to dismiss was held on April 25, 2005. At oral argument, the attorney for the school district recognized that the Durhams could not be required to accept any public special education services under any circumstances. Reaching for a justification, he argued that forcing the Durhams to submit their child to a comprehensive public school special education evaluation was no burden at all. Not only that, he said, forcing them to submit to the evaluation against their will would actually benefit them by providing them with information that they don't currently possess.

Litigation Counsel James Mason responded that the Durhams know as a matter of religious principle that they would never willingly accept public special education services under any circumstances, and that no amount of information could change that religious conviction. Moreover, it is undisputed that the Durhams had already obtained an evaluation from a private source. Thus, they already had all the information they needed to address their child's educational needs.

This administrative hearing is identical in all material respects to Camdenton R-III School District v. Mr. and Mrs. F, another HSLDA case that is currently on appeal in Missouri to the United States Court of Appeals for the Eighth Circuit.

The decision in the Durham's administrative hearing is expected by May 15, 2005.

 Other Resources

Camdenton R-III School District v. Mr. and Mrs. F